The hour is late and you have just completed a difficult hearing. Everything seemed to go well. Proper notice of the proceeding was given to parties and your pleadings were appropriate. You were successful and now it is time to prepare the Order for the Judge’s signature. You did not prepare the Order in advance – after all, how could you know the outcome? You are tired and opposing counsel is pressuring you to "get on with it". You are determined to complete the Order as quickly as possible so you can leave the courtroom and attend to the myriad of other things that require your attention. You labor at counsel table drafting the Order. You scribble a few of the essentials that were accomplished and claim your victory. Your one-pager is finally complete. Satisfied that the Order is sufficiently vague, your opponent gives approval. The Order is given to the Clerk of Court and in turn the Judge signs off without reading the Order – after all, its your Order, you should have to live with it! Sound familiar?
The sad truth is that too frequently the Order or Judgment presented to the court fails to sufficiently represent or memorialize that which occurred at the hearing. This is especially significant where no court reporter or transcribing device was available to record the event, although, the principles applicable to the preparation of a proper Order should apply regardless of whether the proceeding was transcribed or not.
Before presenting the Order to the Court, the attorney should read it with a critical eye. Does it memorialize all that occurred at the hearing in sufficient detail that satisfies the, who, what, where, when and why with the specificity necessary to enforce the rights of parties? Does the Order recite the necessary statutory language? Keep in mind, the document you present to the Court is the Court’s Order and reflects upon that Judge as well as the attorney preparing it. The Judge has the right to insist that it be appropriate in form and content before signing it.
The downside to a poorly drafted order is that its terms may be so ambiguous or the necessarily required language non-existent, so that clarification may be required to inform the parties of rights and obligations. This may, in turn, require one or more court appearances and many hours of otherwise unnecessary time to correct it. When that occurs, there is the inevitable question of, "Who pays?" The answer to that question may be through the dismissal of the attorney by the dissatisfied client, which in turn, may lead to an excuse for the client to refuse to pay fees and even complain to the ARDC.
It is hoped that this article may assist you in preparing a Court Order that will satisfy the test of an appropriate Order.
What is a Court Order? A court Order [or judgment*] is a written pronouncement by a Court of its decision on issues regarding the rights of a party to a lawsuit and serves several purposes. A "judgment" is the official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination, and it is the expression of the court’s decision that constitutes the rendition of the judgment. People ex rel. Schwartz v. Fagerholm, 17 ll.2d 131, 161 N.E.2d 20. (1959). In the first instance and especially significant in cases where there is no reporter or recording device present at the hearing, the Order serves as a record of the proceedings and action of the Court and acts to preserve the record for future reference. Secondly, it establishes rights and creates duties upon the parties or others that are enforceable by the contempt power of the Court. A Judgment must be responsive to pleadings and relief should not be granted where not pleaded. Zelko for Use of Oostema v. Homewood Sav. and Loan Ass’n, 20 Ill.App.2d 481, 156 N.E.2d 233, ( App.1959). Thirdly, the Order may provide a basis for appeal. An Order is final and appealable when it terminates litigation on merits of case and determines rights of parties either upon entire controversy or upon some definite and separate part of it. Rizzo v. Board of Fire and Police Com’rs of Village of Franklin Park, Cook County, 33 Ill.App.3d 420, 337 N.E.2d 735, ( App. 1 Dist.1975).
Who is responsible to prepare the Order? The prevailing party, through its attorney, typically prepares the Order, which is then submitted to the opposing side or sides for approval of the form and content of the Order. It is then presented to the Court for entry by the signature of the Judge. Unfortunately, too frequently, the order as presented to the Court fails to meet the basic test of acceptability and notwithstanding that the Judge may sign the Order; nonetheless it is deficient.
THE TEST OF A WELL -
A well-written order should satisfy the following criteria:
1. Is the Order legible? The document should be legible so it can be easily read. The Order, when hand written should be printed so that it can be easily deciphered. What is the message to the Judge to whom a poorly written and barely legible Order is presented? For openers, one conclusion is that the person preparing the document was lazy and inconsiderate. That message extends to every other person who is forced to decipher such an Order.
2. Is the Order clear in its meaning without reference to another document? If a person with no familiarity with the case were to read the document, would it be clear on its face as to what occurred before the court without reference to another document. What was the basis for the relief requested? Any special considerations? What were the issues presented for consideration? If the court conducted a hearing on the issues presented, is the Order dispositive of each of the issues presented in the Petition or is it necessary for the reader to look to the Petition to understand what took place at the hearing.
3. Does the Order contain the required statutory language? Does the statute under which the relief is sought require that the trial judge make specific findings on questions of fact and jurisdictional issues? In such cases, the Order must recite such specific facts to give validity to the order and provide a basis for the Court to make a finding that is has jurisdiction of the parties and the subject matter of the proceedings. Two examples: 1) For the case where the issue is the custody of a child; and, 2) A case involving bad faith pleadings under Rule 137. In each of these cases the Order or Judgment must recite that the trial court made specific findings of fact required by the statute and the order or pronouncements must logically flow from those findings. The failure of the order to contain this language may render the Order ineffective.
4. Is the language of the Order sufficiently clear and specific to place a party on notice as to the action required, and as such, to justify enforcement by rule of court to show cause for non-compliance? If the Order fails to be specific in its terms as it relates to the obligations of a person to perform, the enforcement power of the court will be unavailable. To enforce an Order of Court by Rule to Show Cause, the movant must recite the language of the Order, which the alleged contemnor violated. If the language of the Order is unclear as to what was expected, then it would be inappropriate for the Court to issue a Rule.
5. Does the Order recite all that took place before the court [the parties present; the basis for the hearing before the court; the findings of fact by the court]? In many cases where a controversy arises over an issue presented to a court before whom there is no official court reporter or authorized recording device, the only record of the proceedings are the documents which have been filed with the Clerk of Court and the Orders entered by the Court. Beyond that there is only the memory of the parties. The significance of this scenario is that without an official record the Order becomes the record. Where the Order is hastily drawn and the drafter fails to recite relevant facts, which memorialize the events of court, the result is a poorly drafted order. The potential then exists for a later dispute as to its interpretation. When that occurs, neither the parties nor respective counsel will recall events with a similar mind-set. Inevitably the recall is from each party’s own particular sense of reality which suits their self-interest. It is also possible that at the time the dispute arises that the players [attorneys, parties, judge, etc.] are other than those that participated in the original proceeding. Finally, as there is the passage of time there is dimming of recollection.
WHAT THE ORDER SHOULD CONTAIN
The first paragraph or element of the Order. The first sentence of the first paragraph should contain the date of the hearing. [This cause coming on to be heard this __ day of _______, 200_ on the Motion …"] There are times when the clerk’s date stamp is unclear or in conflict with other records. Reciting the date of the hearing in the body of the Order will serve as a reminder of the date and a secondary reference of the date the Order was entered. The contents of the first paragraph of the Order should include a recitation of the manner in which the issue was brought before the court; whether there were any responsive pleadings; prior Orders of Court which relate to the instant proceeding [this cause having been previously set for hearing this date by Order dated ———]; the parties present or absent; the attorney’s present and participating in the action [in many cases the appearance is of the firm and it is not clear from the Order presented who the attorney was that participated]. Include a statement on any matters considered by the Court as a prelude to the hearing [stipulations, motion in limine, etc].
The second paragraph or element of the Order. The second element of the Order should include the findings of fact made by the Court. The pronouncements of the court must be justified by its findings of fact. The findings of fact recited in the Order should track with the pleadings presented [the complaint or petition taken together with the answer or response] which placed the matter in controversy before the court. It would be inappropriate for a Court to grant relief to a party through the issuance of an Order directing another to act or refrain from acting without first determining that facts exist to justify the Court’s Order. In many cases the validity of an order is based upon the statutory pre-requisite that the trial court make certain findings of fact.
The pronouncements of the Court, its ORDER, must be consistent with, and flow from the findings of the court as recited in the Order. The pronouncements must be clear and unequivocal in instructing a person to perform or refrain from performing an act. A Court Order which fails to clearly state the pronouncements of the court, such that a reasonable person understands what is expected of him or her, will not be readily enforceable by entry of a Rule to Show Cause. Moreover, the additional time and effort occasioned as a result of an Order that is unclear is a waste of judicial economy, a waste of the effort by the attorney and a cause for unnecessary expenses, whether at the hand of the client or the attorney.
Finally, unless the Order or Judgment is dispositive of all issues relating to the case in chief where no further action will be necessary, the Order should include a date for further action [ex. "this cause is continued to 8-23-98 for status on discovery heretofore ordered on (date)"]. A Judgment is final if it terminates litigation on merits of the case and determines rights of parties so that if affirmed the trial court has only to proceed with execution of judgment; judgment is not final if court retains jurisdiction for future determination of a substantial controversy. Allabastro v. Wheaton Nat. Bank, 46 Ill.Dec. 653, 91 Ill.App.3d 222, 414 N.E.2d 537, (App. 2 Dist. 1980).
As a final incentive for the proper preparation of a court order, consider the issue of attorney’s fees; an issue that is or should be near and dear to your very survival. With that in mind, ask yourself whether the Order you presented to the Court would pass muster if you were seeking fees from your client after representing that client in this matter. If your client contests payment of your fees and hires other counsel to contest your fees and the matter went to a hearing, picture yourself testifying. You are being questioned about the services you rendered and your competency in that representation. The matter of the Order you hastily drafted becomes an issue of competence. It is pointed out that you failed to include relevant information that ultimately required three additional court appearances and many hours of your time to resolve and you billed the client for that time. Your former client is using the failed order as ammunition to challenge the rest of your bill on grounds of competency. How will you justify your request for fees? A critical issue on the question of attorney’s fees and justification for the hourly billing rate is the competency of the attorney. That competency is measured in part by the skill in drafting documents. The court order is a measure of competency. And, not-withstanding that the order was drafted by opposing counsel, if it fails to pass muster and you approved it, it is likewise a reflection upon you.
Think about it!!
Hon. Charles M. Travis is a Circuit Judge in Cook County assigned to the Third Municipal District in Rolling Meadows, IL. He received his Bachelor of Science degree from Monmouth College in 1963 and his Juris Doctor degree from the University of North Dakota in 1971.